Short-Circuiting the 9th: Panel recommends carving out three divisions Author(s): TERRY CARTER Source: ABA Journal, Vol. 85, No. 3 (MARCH 1999), p. 26 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/27840687 . Accessed: 12/06/2014 18:01 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal. http://www.jstor.org This content downloaded from 62.122.73.17 on Thu, 12 Jun 2014 18:01:20 PM All use subject to JSTOR Terms and Conditions
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Short-Circuiting the 9th: Panel recommends carving out three divisionsAuthor(s): TERRY CARTERSource: ABA Journal, Vol. 85, No. 3 (MARCH 1999), p. 26Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840687 .
Accessed: 12/06/2014 18:01
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp
.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].
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American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.
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Short-circuiting the 9th Panel recommends carving out three divisions
BY TERRY CARTER
It has become routine for the U.S. Supreme Court to reverse de cisions by the San Francisco-based 9th U.S. Circuit Court of Appeals like they're so many grooved fast balls trying to get past Mark Mc Gwire. But now a majority of its judges have even been rebuffed by a blue-ribbon commission handpicked by Chief Justice William Rehnquist to study the court's very structure.
The commission sent its rec ommendation to Congress and the
White House in December, over the protest of judges led by Chief Judge Procter Hug Jr. Its plan is to split the circuit into different jurisdictions for cases and precedent but keep a cen tral administration in San Francisco.
"In an attempt to strike the middle they've satisfied neither side," says Erwin Chemerinsky, a
professor at the University of South ern California Law School. 'Those who want a split will be upset if it doesn't achieve the formal division they want. Those who believe in a unified 9th Circuit will says it's split ting without calling it that."
A Chorus of Complaints The impetus for the study and
plan was a 25-year history of com plaints in Congress, particularly the Senate, and particularly from the more conservative states of Mon tana and Washington. Critics have called the circuit, with nine states and two territories, too big, too slow and too liberal.
Should Congress approve the recommendations endorsed by Rehn quist, the circuit would have three regional divisions?most notably with Northern and Southern Cali fornia in different ones. Each divi sion would have seven to 11 judges (the full circuit now has 28).
While the Commission on Struc tural Alternatives for the Federal Courts of Appeals looked broadly at appellate courts, the westernmost circuit was its focus. The recom
mendations in the 100-page com mission report include an option for any appeals court with more than 15 judges to create divisions like those proposed for the 9th Circuit.
Under the recommended plan,
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the circuit would have three divisions, with Northern and Southern California in different ones.
a 13-judge "Circuit Division," al ready nicknamed "Super Circuits," would be formed to resolve conflicts between divisions. Those courts would be made up of the chief judge and 12 active judges from the re gional divisions.
The option drew criticism from chief judges in eight other circuits, who wrote the commission in No vember, after its draft report was issued: "[T]he division option is a brooding omnipresence that will come up every year or each time a new judge is added and will poison the atmosphere in a coll?gial court."
The proposal also would autho rize, but not require, use of two judge panels rather than the cur rent three judges, and District Court panels made up of two dis trict judges and one from the circuit to handle certain kinds of appeals.
The commission, chaired by re tired Justice Byron White with for
mer aba President N. Lee Cooper as vice chair, was created in November 1997 after the Senate approved a
measure to split the circuit and the House asked for a study of the issue.
The proposed organization of the 9th Circuit would be: a northern division of Alaska, Idaho, Montana, Oregon and Washington; a middle division of Hawaii, Nevada, parts of Northern and Eastern California and the Sacramento area, Guam and the Northern Mariana Islands; and a southern division of Southern California and Arizona.
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